Jury awards $51 million to victim; judge throws out drug maker's win

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NEW ORLEANS — Merck & Co. suffered two major legal setbacks over the withdrawn painkiller Vioxx on Thursday when a federal jury here ordered the drug maker to pay $51 million to a heart attack victim, and a state judge in New Jersey overturned a November verdict favoring the company.

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In New Orleans, the jury found that Merck “knowingly misrepresented or failed to disclose” information about Vioxx to retired FBI agent Gerald Barnett’s doctors. It said Barnett, of Myrtle Beach, S.C., should get $50 million in compensatory damages. And it added $1 million in punitive damages, saying Merck “acted in wanton, malicious, willful or reckless disregard for the plaintiff’s rights.”

In New Jersey, state Superior Court Judge Carol Higbee ruled evidence uncovered since the November verdict showed that Merck withheld information showing heart attacks could come with use of Vioxx for less than 18 months, said attorney Christopher Seeger.

Seeger represents Frederick “Mike” Humeston, of Boise, Idaho, who had a heart attack in September 2001.

“Merck consistently said throughout the trial that you had to be on Vioxx for 18 months to be at increased risk of a heart attack,” Seeger said. “And that was false. They had data that people were having heart attacks within weeks.”

The lawsuits are among more than 16,000 Vioxx-related suits against Merck in state and federal courts.

Discussing the New Orleans verdict, David Logan, dean of Roger Williams University School of Law in Bristol, Rhode Island, said it will put pressure on Merck to consider settling cases.

“How long can Merck carry the cost of these verdicts?” Logan asked. “None of these cases are coming back small.”

He said both the cost of litigation plus the management time devoted to overseeing the Vioxx cases takes resources away from Merck that should be spent on developing new products. “This is a drag on Merck going forward,” he said. “it is an enormous tax on the company moving forward.”

Merck shares slumped $1.95, or almost 2 percent, to $39.23 on the New York Stock Exchange on Thursday afternoon.

Barnett’s lawyer, Mark Robinson, had asked for $25 million in punitive damages, arguing that it would send a message to drugmakers that they should not rush pharmaceuticals to market. Merck’s lawyer, Phil Beck, argued that no further awards were needed to punish the drugmaker.

“My guess is that you have already awarded punitive damages. You sent a message loud and clear and the people at Merck heard that message,” Beck said.

Outside the courtroom, Barnett said little, only that he was “very happy” with the verdict. Robinson said he was not disappointed with the relatively small punitive award, saying he wanted punitive damages added as a symbolic gesture to deter drug companies from putting unsafe drugs on the market.

On its verdict sheet, the jury had the chance to assign percentages of fault to Merck and various physicians, but assigned blame only to Merck.

The first federal trial had to be held twice. The first jury deliberated 18 hours over three days, but deadlocked over whether Vioxx was to blame for the death of a Florida man who had taken the drug for less than a month. The second jury in that case came back in less than four hours with a verdict for Merck.

In state courts, before Thursday, Merck had won four cases in New Jersey and California. It had lost two cases in Texas and one in New Jersey.

The jurors who decided the Barnett case have at least two things in common with the plaintiff: All eight are men and they’re all getting older.

Beck pointed out in closing arguments Wednesday that both are risk factors for heart attacks, and neither can be controlled.

Robinson has emphasized that his 62-year-old client, who underwent a quintuple bypass after a heart attack at the age of 58, was careful to keep his risks as low as possible with daily exercise, a healthy diet and drugs to control his cholesterol.

He told the jury that the problem was Vioxx, which Barnett took for 31 months before his heart attack in July 2002. He continued to take the painkiller for another two years, stopping one week before Merck pulled it from the market in September 2004, after a study showed it increased the risk of heart attacks and strokes.

Logan said that jurors may have empathized with Barnett. “Plaintiff lawyers want jurors to think ‘There but for the grace of God goes me.”’ he said.